Argued February 23, 2000
Decided April 13, 2000.
Appeal in the first above-entitled action, by permission of a Justice of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that court, entered November 10, 1998.
Appeal in the second above-entitled action, by permission of a Justice of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that court, entered November 10, 1998.
Appeal in the third above-entitled action, by permission of a Justice an Associate Judge of the Court of Appeals, from an order of of the Appellate Division of the Supreme Court in the First Judicial Department, entered November 19, 1998.
Robert M. Morgenthau, District Attorney of New York County, New York City (Mark Dwyer of counsel), for appellant in the first and second above-entitled actions.
Center for Appellate Litigation New York City (Barbara Zolot, and Robert S. Dean of counsel), for respondent in the first above-entitled action.
Joseph Lee Matalon, New York City, for respondent in the second above-entitled action for respondent.
Center for Appellate Litigation New York City (Bruce D. Austern and Robert S. Dean of counsel), for appellant in the third above-entitled action.
Robert M. Morgenthau, District Attorney of New York County, New York City (Susan Axelrod and Mark Dwyer of counsel), for respondent in the third and second above-entitled actions.
Common to these cases is the question whether a challenge for cause may properly be denied when a prospective juror expresses doubt as to impartiality in the case, and there is no unequivocal indication of that person's ability to set aside any predisposition and fairly appraise the evidence. We conclude that, in these circumstances, a challenge for cause should be granted.
I. People v. Johnson and People v. Sharper
Defendants Karim Johnson and Chance Sharper were indicted in connection with a robbery at a Manhattan recording studio. Their defense was based on police incompetence. The relevant record regarding a challenged prospective juror follows in full.
Trial Judge: "[A] number of witnesses who will be testifying are police officers, they are to be treated the same as any other witness, they are entitled to no greater weight or lesser weight just because they are police officers. Can you treat their testimony the same as any other witness and hold them to the same standard as you would any witness?"
* * *
"And [Prospective Juror 7?]"
Prospective Juror 7: "I have a friend in the Manhattan DA's office, and I deal with both prisoners and police officers."
Trial Judge: "Speak up a little bit."
Prospective Juror 7: "I deal with both prisoners and police officers."
Trial Judge: "[Where] do you work?"
Prospective Juror 7: "Bellevue Hospital."
Trial Judge: "You've had dealings with the District Attorney's office I guess?"
Prospective Juror 7: "I am sorry."
Trial Judge: "Have you had any dealings with the District Attorney's office?"
Prospective Juror 7: "No, just — I have a friend in the District Attorney's office.
Trial Judge: "Okay.
"Is your friend a prosecutor or —."
Prospective Juror 7: "Prosecutor."
Trial Judge: "In view of any of the contacts you had with anyone related to or working for the criminal justice system, are there any opinions that you have formed or any ideas that you hold that would affect your ability to be fair in a criminal case?"
Prospective Juror 7: "I don't know. I have a lot of trust and respect for police officers."
Trial Judge: "I don't think anyone quarrels with that attitude, but do you also recognize that police officers are subject to the same problems and failings that we all have? In other words, there are some good police officers, bad ones, honest ones, dishonest ones?"
Prospective Juror 7: "I guess."
Trial Judge: "Could you evaluate the testimony of police officers fairly?"
Prospective Juror 7: "I don't know, but I would guess so, but I am not positive."
* * *
Defense Counsel: "[Prospective Juror 4], you said and of course we will get into what you would like to say in private, but as you know of course police officers will be testifying, if the Judge states that you are to give the same credence to police officers one way or the other as any other witness, they are not considered more or less credible, do you think you can abide by that instruction?"
Prospective Juror 4: "Sure."
Defense Counsel: "[Prospective Juror 2], do you think you can abide by that instruction if the Judge told you that police officers were no more or no less credible than anybody else?"
Prospective Juror 2: "I would try. Once again, I will probably give them the benefit of the doubt."
Defense Counsel: "Does — anybody else in the jury who would tend to favor the police testimony more than say a civilian's testimony? Anybody else?"
Prospective Juror 7: "I would."
Defense Counsel: "You would?"
Prospective Juror 7: "Yes."
Defendants challenged Prospective Juror 7 for cause, arguing that he — like Venireperson 2, who had already been excused — favored police testimony. After the court denied the challenge for cause, defendants exercised a peremptory challenge against him. They exhausted all of their peremptory challenges before the jury was sworn, and were ultimately convicted of six counts of robbery in the first degree and two counts of attempted robbery in the first degree.
The Appellate Division reversed defendants' convictions and ordered a new trial, holding that the trial court abused its discretion when it denied defendants' challenge for cause where the prospective juror expressed "a heavy bias in favor of police testimony over layperson testimony" (People v. Johnson, 255 A.D.2d 136, 136). The court explained that the case "law is clear that a prospective juror who expresses partiality towards the prosecution and cannot unequivocally promise to set aside this bias should be removed for cause. * * * The juror's responses fell short of this standard" (People v. Sharper, 255 A.D.2d 139, 140-141). We affirm.
People v. Reyes
Defendant Rogelio Reyes was indicted for selling heroin. During voir dire, the prosecutor questioned the venirepersons about drug sales in their neighborhoods. Again, the relevant record regarding two challenged prospective jurors follows in full.
Prospective Juror 13: "I have a ten year old son. He plays in various parks, Washington Square Park.
"He [is] always accompanied by an adult in Washington and Tompkins Square Park there is a lot of drugs, it's there, activity there. Those are the neighborhood parks, we have to let him go there. It's very upsetting and with the resurgence of heroin, I see more and more people just collapsing on the street.
"How do you explain that to your ten year old? What's wrong with the person? It's obvious to me what it is. I know what it looks like."
Prosecutor: "[T]his person's experience as a parent in New York State with this activity going on would affect your ability to be fair and impartial in this case where the defendant is charged with selling?"
Prospective Juror 13: "Possibly. I have different opinions about drugs, but heroin I think is one of the most dangerous drugs."
* * *
Defense Counsel: "As you've heard, my client was arrested for selling drugs, and as we have discussed, drugs are sold in every neighborhood now and affects our lives detrimentally. It's difficult living in a neighborhood where you walk outside and people sell drugs.
"We have children and it's disturbing they are sold so openly. People can be aggressive and abrasive who sell drugs.
"Ma'am, I believe you talked with the assistant about the fact you have a child. It's very disturbing?"
Prospective Juror 13: "It is."
Defense Counsel: "The fact my client has been arrested for selling drugs, as you mentioned, it's for selling heroin. Can you honestly be fair and impartial in this case and base your decision only on the evidence you hear in this case?"
Prospective Juror 13: "I can only try to do that. I've listened to the evidence. There are a lot of emotional things involved that may color my views about someone selling heroin or drugs for that matter."
Defense Counsel: "You think it's possible — understandably your emotional feelings would affect your ability to be impartial?"
Prospective Juror 13: "It's difficult. I wonder with a ten year old son how many years do I have left before I have to let him out on his own. I don't care how many envelopes they have selling drugs, ten or three thousand dollars worth. They are selling illegal drugs."
Defense Counsel: "This is really the time to express your opinion. It's important. My client is on trial for drugs and he has said, `I didn't sell them.'
"Any preconceived notions, or if you feel — now is the time to say it. If you don't feel comfortable here we can approach.
"[Prospective Juror 13], you said it would be difficult. I appreciate that."
Later, the questioning turned to defendant's prior convictions.
Defense Counsel: "[Prospective Juror 2], do you think because my client has been convicted in the past of the crimes I discussed that he automatically is guilty of selling drugs?"
Prospective Juror 2: "No."
Defense Counsel: "[Prospective Juror 13], how do you feel about it?"
Prospective Juror 13: "Definitely makes me wonder about his character."
Defense Counsel: "Do you think he's automatically guilty?"
Prospective Juror 13: "Not automatically."
Defense Counsel: "Would it be difficult to be open-minded?"
Prospective Juror 13: "Again, I would have to say [it] might be difficult."
Defense Counsel: "I appreciate your honesty."
"[Prospective Juror 14?]"
Prospective Juror 14: "I don't think automatically it makes him guilty."
Defense Counsel: "Would it be fair, do you think it's difficult to be fair and objective?"
Prospective Juror 14: "Maybe slightly, to be honest."
There were no further questions of Prospective Jurors 13 or 14. Defense counsel challenged Prospective Juror 13, urging:
"I have number 13 for cause * * *. She had very strong opinions about, first of all, the fact my client was charged with drugs and whether or not she could be fair, and I believe she said she would find it very difficult in light of the fact she has I believe an eight year old child who plays in the park, and they sell drugs there.
"Also, she had [a] strong opinion about the fact that my client has a criminal conviction. She said I believe it would be very difficult for her to be fair and objective and consider this evidence, without forming an opinion based on the fact my client has prior convictions.
"That would make it very difficult for her to be fair and objective."
The Trial Judge ruled: "Challenge for cause as to [Prospective Juror 13] will be denied. In fact, I do believe while she was clearly candid talking about the difficulty she would face, she on balance indicated she could be fair in this case, that she would be open-minded.
"She acknowledged the information, the fact the past conviction would have in evaluating the testimony, but she indicated she could be fair."
Defense counsel next challenged Prospective Juror 14 for cause, explaining that:
"Number 14 * * * [a]lso indicated that because my client has a criminal conviction in his past, it would be difficult for her to be fair and not strongly consider it in deciding whether or not he was innocent or guilty."
The Trial Judge ruled: "Cause is denied as to [Prospective Juror 14]. She clearly indicated two times, I believe, she could be fair. Was candid in indicating it would be somewhat difficult, but she said she could be fair in this case."
Defendant exercised peremptory challenges against both prospective jurors. He exhausted all his peremptories before completion of jury selection and was ultimately convicted. On appeal, the Appellate Division affirmed, concluding that the Trial Judge "properly exercised * * * discretion in denying defendant's challenges for cause" and that the overall responses of each venireperson "negated any substantial risk of bias" ( 255 A.D.2d 228, 228-229). We now reverse and order a new trial.
Fundamental to our constitutional heritage is an accused's right to trial by an impartial jury (NY Const, art I, § 2; US Const 6th, 14th Amends; see also, Duncan v. Louisiana, 391 U.S. 145, 151-154). Indeed, nothing
"is more basic to the criminal process than the right of an accused to a trial by an impartial jury. The presumption of innocence, the prosecutor's heavy burden of proving guilt beyond a reasonable doubt, and the other protections afforded the accused at trial, are of little value unless those who are called to decide the defendant's guilt or innocence are free of bias"
(People v. Branch, 46 N.Y.2d 645, 652).
To safeguard the cherished right to an impartial jury, the former Code of Criminal Procedure authorized a challenge for cause where a prospective juror had a state of mind "in reference to the case, or to either party," which satisfied the court "in the exercise of a sound discretion that such juror [could not] try the issue impartially and without prejudice to the substantial rights of the party challenging" (former Code of Criminal Procedure § 376). Such predisposition or bias, however, was not automatically a ground for exclusion where prospective jurors swore that they did not believe their opinion or impression would influence their verdict, and that they could render an impartial verdict according to the evidence. As this Court explained in People v. Culhane ( 33 N.Y.2d 90, 107), even rote recitation of an "expurgatory oath" did not end the Trial Judge's responsibility to assure an impartial jury:
"`It is not enough to be able to point to detached language which, alone considered, would seem to meet the statute requirement, if, on construing the whole declaration together, it is apparent that the juror is not able to express an absolute belief that his opinion will not influence his verdict * * * The defendant [is] at least entitled to a certain and unequivocal declaration of their belief that they could decide the case uninfluenced by their previous opinions.'"
In 1970, as part of the new Criminal Procedure Law, the Legislature adopted CPL 270.20, which consolidated, "without substantial change," a number of provisions from the Criminal Code relating to challenges for cause, including section 376 (Commn Staff Notes, reprinted in New York Consolidated Laws Service, Annotated Statutes with Forms, Book 7D, CPL 270.20, p. 176; see also, People v. Culhane, supra, 33 N.Y.2d at 104 n2 [citing Denzer, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 11A, Criminal Procedure Law, 270.20] ["For the most part (section 270.20) restates the prior law"]). In simpler language than its predecessor, CPL 270.20 authorizes parties to seek dismissal of a prospective juror based on "actual bias" whenever "He has a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence" (CPL 270.20[b]; Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 270.20, at 425). Most significantly for present purposes, the Legislature eliminated the "talismanic expurgatory oath" requirement, giving Trial Judges both "greater flexibility and a greater responsibility" in determining which venirepersons should be excused for cause (People v. Culhane, supra, 33 N.Y.2d at 104 n2).
Three Court of Appeals decisions define the contours of the statute. In our first major application of CPL 270.20[b] — People v. Blyden ( 55 N.Y.2d 73) — involving an African-American defendant, a prospective juror who was a construction worker told the Trial Judge that because of Federal affirmative action programs he was "against minorities," and did not know whether his feelings would affect his deliberations. In response to the court's thrice repeated question whether he could put aside his feelings, he said, "Yes, I think I could," and "I think I could." Asked if he had already made up his mind about the case, he answered "absolutely not."
This Court nonetheless reversed defendant's conviction and ordered a new trial, explaining that:
"When a question is raised regarding a prospective juror's ability to render an impartial verdict, it is still necessary that the prospective juror in unequivocal terms `must expressly state that his prior state of mind concerning either the case or either of the parties will not influence his verdict, and he must also state that he will render an impartial verdict based solely on the evidence.'
* * *
"[I]t is essential that all elements of the required statements be voiced, and that they be voiced with conviction. The mere words themselves, however, have no talismanic power to convert a biased juror into an impartial one, although they do nonetheless provide a minimum level of protection."
(id., at 77-78 [quoting People v. Biondo, 41 N.Y.2d 483, 485 (applying former Code Crim Pro § 376), cert denied 434 U.S. 928]). Because question was raised as to the prospective juror's ability to be impartial, and he gave no unequivocal assurance that he could render an impartial verdict, we concluded that it was error not to excuse him.
Some two years later, in People v. Williams ( 63 N.Y.2d 882, 883-884), a burglary prosecution, two prospective jurors stated that "although they did not associate with blacks they could render a fair and impartial verdict," and although "they did not approve of interracial marriages * * * they did not feel that the circumstance that defendant [an African-American] had had a white girlfriend * * * would interfere with their verdict" or affect their ability to sit on the jury. Unlike in Blyden, the prospective jurors in Williams themselves never expressed doubt that they could serve impartially. Both because the Trial Judge concluded that their statements did not constitute "actual bias" and because the prospective jurors asserted unequivocally that they could listen "fairly and impartially and that their feelings would not affect their ability to sit on the jury," we concluded that it was not an abuse of discretion to deny defendant's challenge for cause. We explained that:
"most if not all jurors bring some predispositions, of varying intensity, when they enter the jury box. It is only when it is shown that there is a substantial risk that such predispositions will affect the ability of the particular juror to discharge his responsibilities (a determination committed largely to judgment of the Trial Judge with his peculiar opportunities to make a fair evaluation) that his excuse is warranted. Were the rule otherwise, it would be difficult not to require the discharge * * * of every potential juror who disclosed anything but total absence of prejudice * * *, notwithstanding his stated readiness to lay his feelings aside in the discharge of his duties as a juror"
(id., at 885 [emphasis added]).
Finally, in People v. Torpey ( 63 N.Y.2d 361, rearg denied 64 N.Y.2d 885), decided one month after Williams, we once again concluded that in cases of "actual bias" — that is, where a prospective juror has a "state of mind that is likely to preclude him from rendering an impartial verdict" — an unambiguous assurance of impartiality is required before a challenge for cause may be denied. We noted that:
"where there is a prima facie showing of actual bias, the Trial Judge should require the prospective juror to `expressly state that his prior state of mind * * * will * * * not influence his verdict, and * * * that he will render an impartial verdict based solely on the evidence'"
(id., at 367 [quoting People v. Biondo, supra, 41 N.Y.2d, at 485]). In Torpey, a prospective juror who had read that the defendant was a mafia "hit man," indicated she "probably" had a negative impression of him and that it "probably" would not be fair to have someone with her frame of mind seated on the jury. Asked whether she was willing to put aside her impression and "give both sides a fair trial based on the evidence in this courtroom and nothing else," she responded, "I think I can" (id., at 365). Concluding that this statement fell short of the required unequivocal statement of impartiality, we reversed defendant's conviction and ordered a new trial.
Torpey made clear that the principles underlying Blyden and Culhane apply "regardless of the cause of the prospective juror's actual bias" (id., at 366). Indeed, where a juror's predisposition related not to the particular facts of the case but to a party — as in Torpey — "the evidence at trial might not address the basis of the juror's impression and thus may not alter this impression" (id., at 368). Mindful of that risk, we concluded:
"the test for whether such bias has been overcome by declarations is even stricter than where the juror has expressed an opinion as to the defendant's guilt. * * * [T]he prospective juror should be dismissed if there appears to be any possibility that his impressions * * * might influence his verdict"
(id. [emphasis added]).
Thus, from the statute and case law, the guiding principles are perfectly plain: when potential jurors reveal knowledge or opinions reflecting a state of mind likely to preclude impartial service, they must in some form give unequivocal assurance that they can set aside any bias and render an impartial verdict based on the evidence. Obviously, when potential jurors themselves openly state that they doubt their own ability to be impartial in the case at hand, there is far more than a likelihood of bias, and an unequivocal assurance of impartiality must be elicited if they are to serve. As the First Department put it in Johnson and Sharper: the law "is clear that a prospective juror who expresses partiality towards [one side] and cannot unequivocally promise to set aside this bias should be removed for cause" ( 255 A.D.2d, at 140-141, supra). That bright-line standard is followed throughout the State (see, e.g., People v. Butler, 258 A.D.2d 368, 369 [1st Dep't 1999]; People v. Taylor, 120 A.D.2d 325, 326 [1st Dep't 1986]; People v. Zachary, 260 A.D.2d 514, 514 [2d Dep't 1999]; People v. Maddox, 175 A.D.2d 183, 183 [2d Dep't 1991]; People v. Burdo, 256 A.D.2d 737, 740-742 [3d Dep't 1998]; People v. Butler, 221 A.D.2d 918, 918 [4th Dep't 1995], lv denied 87 N.Y.2d 971; People v. Williams, 210 A.D.2d 914, 915 [4th Dep't 1994]).
Applying the law to the facts before us, we conclude that the Trial Judges erred in failing to obtain unequivocal assurances, or excusing potential jurors for cause, when they openly acknowledged doubt that they could be fair in the case.
In People v. Johnson and People v. Sharper, where defendants were challenging the competence of the police, Prospective Juror 7 first noted he had a friend in law enforcement and then expressed his own predisposition toward police officers. While at one point he "guessed" that he could fairly evaluate their testimony, when later asked if he would "tend to favor the police testimony more than say a civilian's testimony," he responded "I would." Asked again whether he would, he confirmed, "Yes." Surely, the cherished right to an impartial jury requires more than this.
Similarly, in People v. Reyes — a prosecution for sale of heroin — Prospective Juror 13 acknowledged that, as a parent, she was particularly upset by drug abuse and could "only try" to be fair and impartial, but that "a lot of emotional things" could "color [her] views" about someone selling heroin. Asked a second time whether her emotional feelings would affect her ability to be impartial, she responded "it's difficult" and that, although defendant's criminal record did not automatically make him guilty, it "might be difficult" for her to be open-minded. So too with respect to Prospective Juror 14, who said she "maybe slightly" might have difficulty being fair and objective.
Significantly, in both instances the Trial Judge stated the applicable law correctly. As to Prospective Juror 13, in denying the challenge, he said that "she on balance indicated she could be fair in this case, that she would be open-minded. She acknowledged the information, the fact the past conviction would have in evaluating the testimony, but she indicated she could be fair." As to Prospective Juror 14, the court noted: "She clearly indicated two times, I believe, she could be fair. Was candid in indicating it would be somewhat difficult, but she said she could be fair in this case." Regrettably, in neither instance does the record support the Trial Judge's recollection that, having openly expressed their doubts, these potential jurors unequivocally represented that they could be fair and impartial.
Finally, addressing the dissent, we are unanimous on the point that, in considering whether a challenge for cause should have been granted, we must look not to characterizations or snippets of the voir dire but to the full record of what the challenged jurors — sworn to speak truthfully — actually said (see, dissent, at 3, 4, 7, 9). It is one thing, for example, to say that Prospective Juror 7 in Johnson and Sharper "stated that he would listen to the testimony of people who lived different lifestyles than he did, and give it the same credibility as he would give to testimony by those who lived the same lifestyle as he did" (dissent, at 3). It is quite another thing to see his actual words regarding police testimony: "[W]ould [you] tend to favor the police testimony more than say a civilian's testimony?" "I would." "You would?" "Yes." It is precisely because of the importance of the actual colloquy that we have set out the relevant record as to each of the challenged jurors.
We all agree as well that, in the important matter of seeking an impartial jury, a trial court must afford counsel a fair opportunity to question prospective jurors, but the court has discretion to restrict the scope of voir dire. That is the purport of the cases cited by the dissent at page 7 (People v. Jean, 75 N.Y.2d 744, 745; People v. Pepper, 59 N.Y.2d 353, 358-359; People v. Stanard, 42 N.Y.2d 74, 81-82, cert denied 434 U.S. 986; People v. Boulware, 29 N.Y.2d 135, 139, cert denied 405 U.S. 995). That, however, is not the issue before us on this appeal.
Ultimately, the principle is a simple one, drawn from the statute, well articulated in our cases, and overwhelmingly understood and applied by courts across the State. When potential jurors themselves say they question or doubt they can be fair in the case, Trial Judges should either elicit some unequivocal assurance of their ability to be impartial when that is appropriate, or excuse the juror when that is appropriate. The "worst the court will have done in most cases is to have replaced one impartial juror with another impartial juror" (People v. Culhane, supra, 33 N.Y.2d, at 108 n3).
Accordingly, in People v. Johnson and People v. Sharper, the Appellate Division orders should be affirmed, and in People v. Reyes, the Appellate Division order should be reversed and a new trial ordered.
We respectfully dissent. Our votes are to affirm in People v. Reyes and to reverse and remit the cases to the Appellate Division (see, CPL 470.25[d], 470.40[b]) in People v. Johnson and People v. Sharper.
It is our view that the rulings by the respective trial courts during and concerning jury selection in these cases should be upheld. A remarkable fact drives our essential point home: several Judges and Justices at both appellate stages of review reasonably draw different interpretations from slices of these transcripts. Thus, these cases are not, or at least should not be, susceptible to "matter-of-law" resolution on these respective, idiomatic voir dire conversations.
This Court has prudently invested trial courts with expansive discretion governing the voir dire jury selection process. The operating rubrics derived from today's decision as applied to these cases, on the other hand, result in unwarranted nullification of otherwise properly tried cases that ended with jury verdicts of conviction. The practical "kicker" also unsettles the authority of trial judges to conduct and manage a fair, yet prompt, voir dire selection process.
CPL 270.20(1)(b) allows a challenge for cause when a prospective juror "has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial." Generally, challenges under CPL 270.20(1)(b) center on "allegations of actual bias" where a juror expresses an unwillingness to judge a case impartially and on the evidence (Preiser, Practice Commentaries, McKinney's Cons Laws of New York, Book 11A, CPL 270.20, at 425). While this section no longer expressly contains an "expurgatory oath" requirement — unlike its Code of Criminal Procedure predecessor — the Majority rationale effectively reinstates that formality on a fairly generalized basis. The new regimen is not progressive for jury selection practices. The elliptical and contextual explorations, delved among the participants concerning whether a prospective juror's response is sufficient to dispel possible bias, are transformed into "matter-of-law" determinations that trump the judgment calls of the trial courts at the "give and take" voir dire setting. A stricter and necessarily heightened review is superimposed long after trial, at a distanced appellate tribunal.
It is also useful to look briefly but more particularly at what the challenged jurors — who were peremptorily excused and never served in the respective cases — did say in these cases. In Johnson and Sharper, the Trial Court's colloquy regarding the for-cause challenge to prospective juror 7, a doctor, focused on his possible desire to be excused because of his upcoming hospital rotation. Toward the end of the venire panel questioning, however, prospective juror 7 responded to defense counsel hypothesis concerning his possible verdict in the case. The doctor asserted he would vote not guilty and also stated that he would listen to the testimony of people who lived different lifestyles than he did, and give it the same credibility as he would give to testimony by those who lived the same lifestyle as he did. He uttered other isolated and disquieting concerns, too, but our dissenting point of view is that the whole context and set of utterances ought to control, not potentially troublesome snippets.
Similarly, in Reyes, the prospective jurors simply attempted to answer counsel's probings in a forthright manner. Prospective juror 13 was honest about how drugs had affected her everyday sensibilities as a parent, but subsequently indicated that she "could only try to be fair." In addition, when prospective juror 13 was asked whether defendant's prior convictions would make him automatically guilty of selling drugs, she answered that it would not. She added the acknowledgment that it might, however, be difficult to be open-minded. Prospective juror 14 was asked the same question immediately thereafter and also responded that it would not make him automatically guilty. When pressed further by defense counsel if it would be difficult to be fair and objective, she replied "[m]aybe slightly, to be honest." This response was the only basis for defense counsel's challenge for cause as to that juror. For the Majority to overrule the trial court's balanced rulings on these exchanges and to conclude that the trial courts abused their discretion as a "matter of law," in concluding that these humanly forthright answers did not preclude fair and impartial jury service, diminishes this Court's "substantial risk" standard of appellate review. The trial courts exercised the power this Court entrusted to them to conclude in these cases that all the contested jurors manifested enough assurances of ultimate impartiality — or at least that they did not pose a "substantial risk" and threat of a biased assessment of the evidence against the defendants. Even if those courts acted "improvidently," there is no legal basis for this Court to displace their judgment-calls by way of the higher matter-of-law standard.
Voir dire jury selection is more akin to an art than a scientific process. A potential juror may be examined numerous times, by multiple questioners, over a period of several hours or even, as in the Johnson and Sharper cases, over days. Inquiries about particular subjects often occur in a piecemeal fashion, based on intuitive probings by counsel and the court, as well as queries raised by prospective jurors themselves. Prospective jurors frequently give elliptical answers or impressions in street vernacular, not by legal formulae and phrasings. They may also provide nuanced hedgings for a variety of human and psychological reasons. Today's decisions reinstate formalistic prerequisites and superimpose a rigid review standard — otherwise widely eschewed as to many trial practices. The rubrics emanating form these cases switch the gears on this State's flexibly and empirically well-founded voir dire practices.
In People v. Williams ( 63 N.Y.2d 882), this Court instructed that, where a potential juror expresses racial biases, the trial court in its discretion must determine whether the potential juror would be able to discharge fairly the duties, if allowed to serve (id., at 884-885). The Court noted that "the only feelings of the jurors were expressed in the abstract, with no disclosure of particular personal conduct ever taken in consequence of such feelings * * * or any other indication of inability to lay personal predilections aside; and the jurors expressed their confidence that, notwithstanding their feelings, they could listen fairly and impartially" (id.). The Court noted that most jurors bring some predispositions when entering the jury box. "It is only when it is shown that there is a substantial risk that such predispositions will affect the ability of the particular juror to discharge his responsibilities (a determination committed largely to judgment of the Trial Judge with his peculiar opportunities to make a fair evaluation) that his excuse is warranted" (id., at 885 [emphasis added]).
The Court then found no error. Anticipating future practices, it added that were it to rule otherwise in cases involving racial bias, every potential juror who disclosed anything but the total absence of prejudice, notwithstanding the juror's stated readiness to lay personal feelings aside, would result in and require automatic excusal from jury service (id.). The results in the instant cases move the process down that previously eschewed slope.
Even in the general voir dire universe, this Court has consistently emphasized the broad discretion given to trial courts to manage this key preliminary stage of a jury trial. Indeed, we "recognize[d] that we are dealing with an area of the law which does not lend itself to the formulation of precise standards or to the fashioning of rigid guidelines" (People v. Boulware, 29 N.Y.2d 135, 139, cert denied 405 U.S. 995). The Court further noted that "it is the function of the trial court, involved and concerned with the quest for truth, to strike the balance, true, no less in the conduct of the voir dire than in the conduct of the trial proper" (id., at 140; see also, People v. Jean, 75 N.Y.2d 744, 745; People v. Pepper, 59 N.Y.2d 353, 358-359; People v. Stanard, 42 N.Y.2d 74, 81-82, cert denied 434 U.S. 986).
Thus, the determination of whether actual bias has been displayed and whether a prospective juror's uncertainties are unequivocal is responsibly and reliably allocated to trial court weighing. After all, Trial Judges have the advantage of seeing each potential juror's demeanor and body language in context of the whole of the questions and answers exchanged with the entire venire panel, as well as those uttered by the for-cause challenged individuals.
Even assuming that a prima facie showing of actual bias was made with respect to each of the challenged jurors in these cases — a conclusion which we strongly dispute on these transcripts, read as a whole and carefully scrutinized from this final forum perspective — the trial courts remain vested with the discretion. They must weigh whether a "substantial risk" of possible bias was offset by the full give-and-take exchanges.
In People v. Culhane ( 33 N.Y.2d 90), four prospective jurors were challenged for cause, primarily based on their impressions after having read newspaper articles and hearing radio reports regarding the crimes charged (id., at 96-97). The Court noted that Code of Criminal Procedure § 376, the statute in effect at the time, "severely limited the grounds for automatic disqualification" and provided that "`actual bias' could be purged by the recitation of a statutory oath provided the court in its sound discretion was satisfied that the oath had dispelled the taint" (id., at 102 [emphasis added]). In Culhane, a prima facie showing of actual bias was made as to the four prospective jurors, thus the Court turned to the oath requirements (id., at 106). The Court noted that the statutory oath requires the juror to declare a belief on whether a previously held impression or opinion will influence the verdict and whether the juror can render an impartial verdict according to the evidence (id., at 106-107). Thus, "to this extent the testimony must be taken as a whole," and if the oath has met these standards, the trial court must "determine whether the prior opinion or impression has lost its sway over the mind of the juror" (id., at 107).
Addressing the still-current CPL provision which had been enacted in the interim, the Court noted that "the new law gives the Trial Judge greater flexibility and a greater responsibility" in determining which prospective jurors should be excused for cause, due to the abandonment of the expurgatory oath requirement (id., at 104, n2). Culhane reinforced the broad discretionary powers vested in the trial court by statute and calibrated precedents, based in part on the better vantage point of trial courts to evaluate voir dire exchanges as a whole and in the context of that front-line environment.
While the Majority today relies heavily on People v. Blyden ( 55 N.Y.2d 73), that case does not restrict the discretion entrusted to trial courts to provide balancing judgments in resolving these matters. Nor does Blyden come close to compelling the matter-of-law results, extrapolated out of these voir dire transcripts.
In Blyden, this Court referenced the important footnote in Culhane, quoted earlier, while agreeing that an expurgatory oath might still be useful as an extra reassurance to resolve doubt about a prospective juror's impartiality (see, id., at 77). Blyden establishes that when questions involving a juror's ability to render an impartial verdict are raised, the juror's statements as a whole and in context must indicate that he or she will be able to serve impartially and render a verdict based solely on the evidence (id., at 77-78). In the present cases, taking the exchanges as a whole and in context, there is no justification to go so far as to conclude that the trial courts violated their discretionary authority, as a matter of law, in their determinations that the responses by prospective jurors were overall satisfactory to withstand a for-cause challenge. Thus, Blyden is manifestly distinguishable.
Very importantly, People v. Williams ( 63 N.Y.2d 882, supra) also distinguished Blyden. This Court unanimously underscored, with the benefit of common law empirical perspective and applications in specific cases decided after Culhane and Blyden, that the determination whether a potential juror's responses are unequivocal should be left virtually exclusively to the trial court. Williams placed Blyden in context by noting that in Blyden the juror could do no more than state in response to the court's thrice-repeated question that he thought he could put aside his feelings about minorities (id., at 884). This Court pushes the Blyden envelope well beyond Williams' carefully circumscribed analysis. In realistic terms, today's matter-of-law modality conflates the intermediate appellate court mode of superintendence (see, CPL 470.15 — 470.25).
We offer another apt analogy from People v. Mackey ( 49 N.Y.2d 274). This Court used the common law, experience-taught method to conclude that the exclusion of prior convictions was properly a matter of discretionary weighing — not a "matter-of-law" modality — vested "virtually exclusively" in the trial courts, fortified and supervised by the plenary review power of intermediate appellate courts. We noted that we could not "say that the ruling of the pretrial Judge or that of the Trial Judge * * * constituted the clear abuse of discretion that would make it reversible error" (id., at 281-282). Mackey concludes that "[u]nder these circumstances, adherence to the ruling of the pretrial Judge is not such an exercise of discretion as, after affirmance by the Appellate Division, warrants reversal" (id., at 282). That prudent and respectful allocation of judicial power not only has worked very well, it also applies, a fortiori, to the grey, arguable shadings presented by these voir dire transcripts (see also, People v. Gray, 84 N.Y.2d 709).
The finely balanced set of rubrics that we propose based on this Court's precedential guideposts, leaving such matters to "a discretionary determination for the trial courts and fact-reviewing intermediate appellate courts," makes a lot of good sense (see, People v. Mattiace, 77 N.Y.2d 269, 274). Plenary review by intermediate appellate courts, with discretion and interest of justice powers should play a role in this Court's decisional choices about such cases. It is very important to point out the existence of that safeguard because it proportionately protects against unfettered, arbitrary and even improvident exercises of trial court discretion. As dissenters, we also agree that more prophylactic practices like exceptional expurgatory oaths or even more probing explorations should be undertaken at the trial level, when appropriate. On the other hand, formalisms that unnecessarily pinch trial court discretion should not be mandated as a matter of law.
The voir dire exchanges in these cases presented dynamic variables and, to be frank, some degree of uncertainty or unevenness. Could the trial courts have gone an extra mile to dispel any doubts and nail down a firmer commitment to impartiality? The answer is "Yes." Did they have to do so in order to avoid an appellate ruling labeling them abusers of trial court discretion, determined as a matter-of-law? The answer should be "No." The very fact that so many judicial officers have assayed these transcripts so differently (the Trial Judges, the Appellate Division Justices, the Court of Appeals Judges) logically demonstrates that these calibrations were matters of degree, not matter-of-law certainty. The rub of these cases can be appreciated by examining the fuzzy difference between a weighing exercise (discretion), contrasted to a matter-of-law template (more doctrinaire). In the end, the cases present issues that are quintessentially and rightly entrusted to a trial court's in-the-trenches balancing resolution.
After all is said and done, we dissenters, like our colleagues who comprise the Majority, might have ruled differently or pressed the challenged jurors harder, were any of us serving as the Trial Court Judges. But that is not the test and standard for decision at this Court. Seeing with the benefit of hindsight what might have been done to provide a bit more reassurance does not render wrong the actions taken by these trial courts — at least as measured through the sharper prism of later appellate scrutiny.
Order affirmed. Opinion by Chief Judge Kaye. Judges Smith, Levine, Ciparick and Rosenblatt concur. Judge Bellacosa dissents and votes to reverse in an opinion in which Judge Wesley concurs.
Order reversed and a new trial ordered. Opinion by Chief Judge Kaye. Judges Smith, Levine, Ciparick and Rosenblatt concur. Judge Bellacosa dissents and votes to affirm in an opinion in which Judge Wesley concurs.